The Use of Benchmarks in the Colombia Situation: An Opportunity for a Victim-Oriented Approach to ICC Complementarity

[Alejandra Muñoz is an International Legal Advisor with a Colombian lawyers’ collective, ”Colectivo de Abogados José Alvear Restrepo (CAJAR)’]

In February this year, the long awaited first voluntary statement rendered by Colombian army general Mario Montoya Uribe before the country’s Special Jurisdiction for Peace (SJP) sparked a great deal of frustration and disappointment among victims. After refusing to speak entirely on the first day, his declarations on the second day not only failed to contribute in any manner to establishing the truth on the more than 2000 extrajudicial executions of civilians during his time as Commander of the army, but even implied to the family members present that the killing of their loved ones was to be attributed to the low socio-economic background of his soldiers. The statement came as an additional blow to victims who had already been denied participation or even presence in previous SJP hearings which supposedly are focused around their ‘’centrality’’.

General Montoya is the thus far highest military official to appear before the SJP and one of the potential cases identified by the Office of the Prosecutor (OTP) of the ICC in the context of its ongoing preliminary examination in Colombia. In accordance with the ICC’s complementarity principle, the OTP is closely monitoring whether Colombia’s national efforts towards accountability for crimes potentially falling under ICC jurisdiction are sufficient, or whether they warrant the opening of a formal investigation. Recently, the OTP announced that it will use benchmarks for this determination. This post proposes a central role for victim’s rights and interests in the OTP’s analysis and the conceptualization of said benchmarks.

Colombia’s Special Jurisdiction for Peace and victims’ rights

The formal peace agreement, signed between the Colombian government and the Revolutionary Armed Forces of Colombia-People’s Army (FARC-EP) in November 2016, created, among other transitional justice mechanisms, the Special Jurisdiction for Peace. In accordance with its mandate, the SJP is to investigate, prosecute and punish those responsible for the most serious human rights violations committed during Colombia’s armed conflict. In line with its restorative character, in exchange for contributing to the truth, which should be ‘’exhaustive, complete and detailed’’, those who appear before the SJP can be given lighter sentences and other benefits, including the granting of conditional release. This has made the voluntary acceptance of this jurisdiction an attractive option for many members of the armed forces under investigation (as is the case for General Montoya) or already convicted by the ordinary justice system. Victims’ organizations, however, have in many cases criticized the awarding of these benefits (which to date have been granted to 95% of army officials who appeared before the SJP) without an adequate evaluation of the person’s commitment to truth-telling. Another concerning development came to light in May this year, with the revelation of illegal surveillance activities by the military of, among other individuals, 14 human rights lawyers and members of victims’ movements advocating before the SJP. Given Colombia’s problematic history where illegal surveillance operations often facilitated the violent persecution of its targets, this development may seriously undermine the safety and security of victims and their representatives (For a more detailed overview of these and other concerns raised by human rights organizations, see the recent ICC submission by CAJAR and the International Federation for Human Rights (FIDH)).

The OTP’s Preliminary Examination into the Situation in Colombia – the use of benchmarks

The OTP’s preliminary examination in Colombia, which initiated in 2004, is the Office’s  longest running to date. In line with its positive complementarity approach, the OTP’s continued presence has over the years encouraged Colombian authorities to initiate investigations, adopt legislation on access to justice and strengthen prosecutorial policies. Nevertheless, political will and prosecutorial strategies to establish the responsibility  of high-level state officials have been lacking.

In its 2019 Report on Preliminary Examination Activities as well as when concluding its recent visit to Colombia this January, the Office announced that in the course of 2020 it would seek to develop ‘’indicators and benchmarks’’ to assess the country’s efforts towards accountability for Rome Statute crimes. The content of these benchmarks are yet to be defined. Some clarity may be offered by the situation in Guinea, where the OTP identified concrete steps to be taken by national authorities to advance in investigations, such as a visit by judges to the stadium where the crimes occurred and the questioning of the former president. According to Human Rights Watch, the OTP in the past has been reluctant to apply benchmarks to the Colombian situation ‘’given the broad temporal, geographical and subject matter scope of the underlying crimes’’. However, precisely because of the complex nature and broad scope of these crimes, the use of benchmarks may be helpful to identify some crucial steps that are needed to move beyond the prosecution of low and mid-level soldiers. Their prescriptive character could in this sense serve as an additional pressure mechanism towards accountability for senior army officials. However, these benchmarks should not remain limited to prosecutorial strategies: their conceptualization presents an important opportunity for the OTP to give a more central role to victims’ rights to the truth, participation, reparations, and protective measures in its complementarity analysis.

Victims’ rights and complementarity

In accordance with Article 17 of the Rome Statute, the ICC may move towards the opening of an investigation if the case is of sufficient gravity and if the country in question is ‘’unwilling’’ or ‘’unable’’ to genuinely carry out investigations or prosecutions. Here, Article 17(2) specifies that ‘’unwillingness’’ can be demonstrated by proceedings undertaken with the intent to shield the person concerned from criminal responsibility, unjustified delays, or a failure to conduct said proceedings independently or impartially, all in a manner inconsistent with an intent to bring the person concerned to justice. There is no mention of victims and their interests. Article 17(2), however, also states that in its consideration the Court should have ‘’regard to the principles of due process as recognized by international law’’. This could include victims’ right to an effective remedy, especially when read together with Article 21(3) which places an obligation to interpret and apply provisions of the Statute in a manner ‘’consistent with internationally recognized human rights’’. In particular, Judge Ibáñez has insisted on these to include victims’ rights to truth, access to justice, participation and reparations (paras. 34-48).There is still unclarity as to the precise scope of Article 21(3). In the Al-Senussi case, the Appeals Chamber did not deem the suspect’s fair trial concerns sufficient to declare the case admissible, stressing that it was not a human rights court (paras. 218-219). At the same time, however, it did not entirely exclude such concerns from playing a role in assessing a state’s genuineness (paras. 229-230) It is moreover important to note that the Chamber largely based its findings on the object and purpose of Article 17 to allow the Court to act in situations ‘’which would lead to a suspect evading justice’’ (paras. 214-218). The ICC may therefore come to a different conclusion when the rights at stake are those of victims, especially when directly balanced against a more lenient sentencing regime for their perpetrators.

Thus far, the Court has not given victims’ rights and interests a prominent role in admissibility considerations. Concerns raised by victims in the situations in Uganda and Libya on their lack of access to justice, the absence of protective measures, limited possibilities to participate in proceedings and difficulties in obtaining reparations were not addressed by the Pre-Trial Chamber for either being premature (Kony et al., paras. 47-51)  or having already established the inability of the national judicial system concerned (Gaddafi, paras. 151 and 215-218). With respect to the Colombian situation, however, the OTP in its latest report did note a recent SJP ruling which allowed for victims’ direct participation in its proceedings  related to extrajudicial executions. In the same report, it listed restoration as one of the important sentencing objectives to be taken into account in its admissibility consideration. In addition, while the OTP has been supportive of the SJP and its alternative sentencing regime, during his visit to Colombia in November 2018, Deputy Prosecutor James Stewart warned against the granting of conditional release and reduced sentences to army officials without imposing the requirement of truth-telling and acknowledging responsibility. The latter consideration does of course not exclusively reflect victims’ rights, but is rather closely connected to the OTP’s assessment of the adequacy of sentences issued for Rome Statute crimes. Similarly, in the Court’s own sentencing determination, it is required , under Rule 145(2)(a)(ii) of the ICC Rules of Procedure and Evidence, to take into consideration as mitigating circumstances any efforts by the convicted person to compensate the victims.

The restorative and victim-oriented nature of the SJP in exchange for its leniency in sentencing would in this sense more easily allow for an explicit reference to the rights and needs of victims in the conceptualization of the OTP’s benchmarks. Their adequate formulation could more strongly encourage SJP officials to take specific steps to guarantee victims’ rights, such as the development of clear criteria for their participation as well as for the evaluation of a person’s contribution to the truth. The latter example could also contribute towards the prosecution of senior military officials, whose involvement may come to light in the statements rendered before the SJP. Moreover, as also noted by Human Rights Watch, ideally, these benchmarks should be made public, as this would on the one hand increase transparency on the OTP’s activities, and on the other hand allow civil society organizations to carefully monitor them.

General Montoya’s refusal to contribute to the truth as well as his revictimizing comments prompted victims’ organizations to formally call for his exclusion from the SJP and its benefits. The SJP is yet to take a decision on this petition. Nevertheless, this case illustrates the ongoing obstacles faced by victims in Colombia in their access to justice, even when proceedings are formally designed to meet their needs. An explicit inclusion of their rights and interests in the OTP’s announced benchmarks would therefore be appropriate.